MARTYN P. SEWARD, APPELLANT,
v.
KATHRYN LOWE SEWARD, APPELLEE
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The court affirmed the temporary awards of costs and attorney's fees, finding no abuse of discretion.
The case involves temporary awards of costs and attorney's fees in a dissolution case. The concurrence agrees with the affirmation of these awards.…
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ANTOON, Judge.
In this dissolution action, Martyn Seward (the husband), appeals the non-final order awarding Kathryn Seward (the wife), $2,000 in temporary costs and $2,000 in temporary attorney’s fees.1 We affirm.
The trial court has broad discretion to award temporary costs and attorney’s fees in a dissolution action based upon the parties’ respective need and ability to pay. See Nichols v. Nichols, 519 So. 2d 620 (Fla.1988). See also § 61.16, Fla.Stat. (1993). In awarding the wife costs and fees in this case, the trial court did not abuse its discretion. See Valentine v. Valentine, 244 So. 2d 503 (Fla. 4th DCA 1970). In so ruling, we note that the court costs were incurred by the wife because the husband refused to disclose his financial documents and, as a result, the wife was forced to subpoena the bank in order to obtain discovery of such records.
AFFIRMED.
PETERSON, C.J., concurs.
W. SHARP, J., concurs specially, with opinion.
. Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(iii) of the Florida Rules of Appellate Procedure.
W. SHARP, Judge,
concurring specially.
I agree this case should be affirmed. No abuse of discretion in making the $2,000.00 temporary cost award and the $2,000 temporary attorney’s fee award was shown. The proper basis for making such temporary, final, and appellate awards of costs and attorney’s fees in dissolution cases is “considering the financial resources of both parties.” § 61.16, Fla.Stat. (1995)
That is not necessarily the same thing as determining “need and ability to pay.” In other words, a spouse need not be so financially strapped as to be unable to pay an attorney to represent him or her, in order to meet the criteria of the statute for an award of fees. Justice Barkett’s opinion in Nichols v. Nichols, 519 So. 2d 620 (Fla.1988) does not stand for that proposition.
In Nichols, the court approved the district court’s opinion which spoke to ability to pay as being the primary criteria, in result only. Justice Barkett pointed to consideration of the financial resources of both parties, quoting section 61.16, as being the proper criteria. The intent of the statute is to put both parties on an equal footing regarding their ability to retain counsel and prosecute their respective suits. This position is also reflected in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990), where the court stated:
[S]eetion 61.16, Florida Statutes (1987), concerning attorney’s fees in domestic relations cases, provides that “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees.” A party’s financial resources can substantially restrict the amount of attorney’s fees awarded. Our case law implementing this statute requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation. A significant purpose of this fee-authorizing statute is to assure that one party is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party, (emphasis supplied)
Id at 834. A spouse in a dissolution ease should not be compromised in obtaining adequate legal representation because of having relatively inferior financial resources. See Emmel v. Emmel, 671 So. 2d 282 (Fla. 5th DCA 1996).
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Rausch v. Rausch, 680 So. 2d 624 (Fla. 5th DCA 1996)…The two-part test for considering an award of fees under section 61.16, Florida Statutes (1993) is (1) whether the spouse seeking a fee award is in financial need; and (2) whether the other spouse has the ability to pay those fees. Seward v. Seward, 676 So. 2d 49 (Fla. 5th DCA 1996). This test facilitates the statute's purpose of enabling a financially disadvantaged spouse to receive adequate legal representation. The standard was approved by our supreme court in Standard Guaranty Insurance Co. v. Quanstrom,…
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Kelly v. Kelly, 925 So. 2d 364 (Fla. 5th DCA 2006)…lawsuit throughout August of 2003, which increased the cost of litigation to Laurie. The trial court was correct in awarding attorney fees for this reason. See Rosen; Elliott v. Elliott, 867 So. 2d 1198 (Fla. 5th DCA 2004); Nelson; Seward v. Seward, 676 So. 2d 49 (Fla. 5th DCA 1996); Levy v. Levy, 862 So. 2d 48 (Fla. 3d DCA 2003). A recitation of all instances is not possible in this opinion. However, we list some of the extra efforts the former wife had to resort to in order to prosecute her case. 1. In De…
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Freid v. Freid, 717 So. 2d 145 (Fla. 5th DCA 1998)…n of financial need or ability to pay. Id; Diaco v. Diaco, 363 So. 2d 183 (Fla. 2d DCA 1978). Within the parameters of the parties’ need and ability to pay, the trial court has broad discretion in making an award of attorney fees. Seward v. Seward, 676 So. 2d 49 (Fla. 5th DCA 1996). But the court is required to make findings on each issue: the need of the requesting spouse and the ability to pay on the part of the other spouse. Abernethy v. [*146] Fishkin, 638 So. 2d 160 (Fla. 5th DCA 1994). See also Firest…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988)
- Emmel v. Emmel, 671 So. 2d 282 (Fla. 5th DCA 1996)
- Helene M. Valentine v. Valentine, 244 So. 2d 503 (Fla. 4th DCA 1970)